1

 We previously discussed the term “sexually dangerous person” and the

Minnesota Sex Offender Program in Senty-Haugen v. Goodno, 462 F.3d 876, 880–81

(8th Cir. 2006). 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-3441

___________

Luis A. Serna, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the District of 

* Minnesota.

Kevin Goodno; Jerry Zimmerman, *

*

Defendants - Appellees. *

___________

Submitted: November 12, 2008

Filed: June 3, 2009

___________

Before MELLOY, BOWMAN, and SMITH, Circuit Judges.

___________

MELLOY, Circuit Judge.

Luis A. Serna is an involuntarily civilly committed “sexually dangerous person”

currently detained as part of the Minnesota Sex Offender Program (the “Program”)1

at a treatment facility in Moose Lake, Minnesota. Staff at Moose Lake discovered a

cell-phone case in a common area, considered cell phones to be security and treatment

risks, and began to search for a suspected contraband phone. They first searched the

common area and then viewed a surveillance videotape, but they found no phone and
2

The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota, adopting the Report and Recommendation of Susan Richard

Nelson, United States Magistrate Judge for the District of Minnesota.

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were unable to determine who had dropped the case. Administrators next instituted

facility-wide, visual body-cavity searches of all patients. The body-cavity searches

did not result in discovery of a phone. 

Serna brought a 42 U.S.C. § 1983 civil-rights claim against a Program

administrator and against the head of Minnesota’s Department of Human Services in

their official and individual capacities. Serna alleged that the search was unreasonable

under the Fourth Amendment of the U.S. Constitution and sought damages and

injunctive relief. The district court2

 held that the state had not waived its sovereign

immunity and that the Eleventh Amendment of the U.S. Constitution barred Serna’s

official-capacity claims for damages. Regarding Serna’s other claims, the district

court granted summary judgment, holding that the search was not constitutionally

unreasonable. In the alternative, the district court rejected the individual-capacity

claims, holding that Serna failed to allege sufficient personal involvement by the

present defendants.

Serna does not appeal the Eleventh Amendment dismissal of the officialcapacity claims for damages. Regarding the official-capacity claims seeking

injunctive relief and the individual-capacity claims, the particular facts of Serna’s case

present a close question of constitutional law, but, ultimately, we hold that the search

was not unreasonable. Accordingly, we affirm the judgment of the district court.
3

 The Program has a duty “to provide care and treatment” to committed persons

in its Moose Lake facility, Minnesota Statute § 246B.02, and it attempts to teach

detainees how to control their dangerous sexual behaviors so that they can eventually

return to the community. Serna submitted a petition for discharge in 2006. The State

denied his petition, in part, because he “failed to explain why he was no longer in need

of in-patient treatment and supervision.” Serna v. Goodno, No. A06-331, 2006 WL

1985765, at *1 (Minn. Ct. App. July 18, 2006) (unpublished).

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I. Background

Prior to his commitment, Serna had been convicted of sex offenses and had

completed his criminal sentences. A state court determined in civil proceedings in

2000 that Serna was a “sexually dangerous person” and committed him to the custody

of the Program for an indeterminate number of years pending completion of his

treatment. The Program has held Serna in civil custody for approximately nine years.3

Staff discovered a cell-phone case at the Moose Lake facility on October 28,

2003, in a common area accessible by patients, staff and some visitors. Staff searched

the common area where they discovered the case, but they found no phone. Staff then

viewed a surveillance videotape of the common area. The videotape revealed some

identifiable patients, but staff were unable to determine whether one of the identifiable

patients had dropped the case. The defendants claim that, based on this information,

administrators suspected a patient was the source of the cell-phone case (and

potentially harbored a phone) but believed they could not narrow their suspicion to

any one patient or group of patients. Administrators ordered facility-wide room

searches and visual body-cavity searches to find a contraband phone. There is no

evidence to suggest that the less-invasive room searches preceded the visual bodycavity searches.

Teams consisting of two male staff members conducted the visual body-cavity

searches on the patients, all of whom were male. The teams conducted the searches
4

We note that the Program maintains a separate facility that has adopted a

policy imposing stricter limits on the use of visual body-cavity searches. The

defendants in the present case distinguish that facility from the Moose Lake facility

as involving different treatment and security concerns. 

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pursuant to written and oral instructions that directed staff members to ask for

compliance with the search, conduct each search individually in a large private

bathroom, and visually inspect the patients’ bodies according to a set protocol. As a

part of that protocol, staff asked each patient to lift his genitals. Staff also instructed

each patient to turn, bend over slightly, and spread his buttocks. There was no

physical contact with the patients during the searches. It appears undisputed that

personnel conducted searches of approximately 150 patients. Serna does not contend

that facility personnel executing the searches breached the protocol or otherwise acted

in an unprofessional manner. He does allege, however, that his consent to the search

was not valid given the custodial nature of the environment, a threat of discipline if

he failed to consent, and his apparent lack of choice in the matter.

There is no suggestion that officials suspected Serna, in particular, possessed

the phone presumed to have accompanied the case. In fact, Serna had been confined

at Moose Lake for three years prior to the search and had not possessed any drugs,

weapons, or other contraband during that time. Other patients in the Program had

been found in recent possession of cell phones, however, and had used cell phones in

ways counter to security and treatment goals. Given such instances, administrators

deemed cell phones to pose a treatment and security threat to patients and a security

threat to staff, past victims, and prospective victims. 

Administrators did not focus their search efforts on the patients identified in the

surveillance tape or on patients with a recent history of possessing cell phones or other

contraband. In fact, in their briefing to our court, the defendants present arguments

broader than the facts of Serna’s case, claiming that they may use facility-wide, visual

body-cavity searches anytime they harbor a generalized suspicion of contraband.4

 
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Ultimately, the facility-wide, visual body-cavity searches failed to reveal a cell

phone. Based on a tip from a patient, however, staff discovered a phone in the room

of a patient in a protective-isolation unit two days after commencing the body-cavity

searches. Because the patient was in protective isolation, he did not have access to the

common area where the case was found, and the defendants argue that this fact

demonstrates that the phone was an object capable of being passed among detainees

and secreted on or within patients’ bodies. 

II. Discussion

A. Involuntarily Civilly Committed Persons Retain Liberty Interests

Analogous to Pretrial Detainees

Neither we nor the Supreme Court have determined the appropriate standard for

considering whether a particular search violates the Fourth Amendment rights of a

person who is involuntarily civilly committed. We have, however, identified the

constitutional standard applicable to an alleged violation of the Fourth Amendment

rights of an involuntarily committed person based upon a seizure. See Andrews v.

Neer, 253 F.3d 1052, 1061 (8th Cir. 2001). The plaintiff in Andrews, who was

lawfully involuntarily committed, brought a 42 U.S.C. § 1983 suit alleging that a

seizure using excessive force violated his Fourth Amendment rights. Id. at 1055,

1061. In a matter of first impression, we determined that such a Fourth Amendment

seizure claim “should be evaluated under the . . . standard usually applied to

excessive-force claims brought by pretrial detainees.” Id. at 1061. 

In making this determination, we considered whether involuntarily committed

persons are more like arrestees, pretrial detainees, or convicted prisoners. Id. We

concluded that the best analogy is to pretrial detainees because “confinement in a state

institution raise[s] concerns similar to those raised by the housing of pretrial detainees,

such as the legitimate institutional interest in the safety and security of guards and
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other individuals in the facility, order within the facility, and the efficiency of the

facility’s operations.” Id. Other circuits have relied upon Andrews in considering

constitutional claims raised by involuntarily committed individuals. See, e.g., Hydrick

v. Hunter, 500 F.3d 978, 997–98 (9th Cir. 2007); Davis v. Rennie, 264 F.3d 86, 102,

108 (1st Cir. 2001). But see Aiken v. Nixon, 236 F. Supp. 2d 211, 236 (N.D.N.Y.

2002) (finding civilly committed persons akin to prison visitors for the purpose of

considering the constitutionality of visual body-cavity searches), aff’d, 80 F. App’x

146, 147 (2d Cir. 2003) (unpublished). 

 

The similarity in the grounds for detaining persons awaiting trial and persons

determined to be sexually dangerous supports application of the analogy to pretrial

detainees in the present case. One reason pretrial detainees are kept in custody prior

to trial is “because there is cause to believe that they are dangerous.” Johnson-El v.

Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989). For example, under the Bail Reform

Act of 1984, individuals charged with federal criminal offenses shall be detained prior

to trial if “no condition or combination of conditions will reasonably assure . . . the

safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). Similarly,

commitment under Minnesota law as a sexually dangerous person “requires a finding

of future dangerousness.” Hince v. O’Keefe, 632 N.W.2d 577, 581 (Minn. 2001)

(quotation omitted). An individual committed as a sexually dangerous person in

Minnesota is, by statutory definition, “dangerous to the public.” Minn. Stat. §

253B.02, subdivs. 17, 18(c). 

Although decided under the Due Process Clause of the Fourteenth Amendment,

another Supreme Court case, Youngberg v. Romeo, 457 U.S. 307 (1982), further

supports application of the pretrial-detainee standard in Serna’s case. There, the Court

considered the constitutionality of the conditions of confinement for an involuntarily

committed, mentally disabled man. Youngberg, 457 U.S. at 309. In its analysis, the

Court stated, “Persons who have been involuntarily committed are entitled to more

considerate treatment and conditions of confinement than criminals whose conditions
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of confinement are designed to punish.” Id. at 321–22. After determining that the

involuntarily committed, mentally disabled man retained constitutionally protected

liberty interests, the Court considered whether the infringement upon his liberty

interests violated due process. Id. at 319–23. The Court drew an analogy between

pretrial detainees and civilly committed persons as two groups that could be subjected

to liberty restrictions “reasonably related to legitimate government objectives and not

tantamount to punishment.” Id. at 320–21. 

Against this backdrop, we can discern no justification for treating a Fourth

Amendment claim based upon a search differently than a claim based upon a seizure.

Thus, Andrews, which addresses a seizure claim, articulates the appropriate standard

for considering whether an involuntarily committed person has been subjected to an

unconstitutional search. See Andrews, 253 F.3d at 1061. Youngberg illustrates the

strength of the analogy between civilly committed persons and pretrial detainees,

concluding these groups are similar even outside the context of a Fourth Amendment

claim. See Youngberg, 457 U.S. at 321–22.

B. The Test for Reasonableness of a Search of Pretrial Detainees or

Involuntarily Civilly Committed Persons

In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court articulated a

balancing test for determining whether searches conducted on pretrial detainees were

reasonable under the Fourth Amendment. The Court stated:

The test of reasonableness . . . requires a balancing of the need for the

particular search against the invasion of personal rights that the search

entails. Courts must consider the scope of the particular intrusion, the

manner in which it is conducted, the justification for initiating it, and the

place in which it is conducted.
-8-

Id. at 559. The searches challenged as unreasonable in Bell were visual body-cavity

searches conducted upon detainees’ re-entry to a detention facility following their

contact visits with outside persons. Id. at 558. The Court ultimately rejected the

detainees’ claims and concluded that the searches at issue were not unreasonable. Id.

As justification for the searches, officials had cited security concerns and stated the

searches were necessary to “discover . . . [and] deter the smuggling of weapons, drugs,

and other contraband into the institution.” Id. Officials also had noted that the

searches were in lieu of invasive monitoring of visits between detainees and outside

persons. Id. at 559 n.40. The Court noted the highly invasive nature of the search,

stating, “We do not underestimate the degree to which these searches may invade the

personal privacy of inmates.” Id. at 560. Ultimately, however, the Court determined

that the security concerns outweighed the inmate’s privacy interests because “[a]

detention facility is a unique place fraught with serious security danger. Smuggling

of money, drugs, weapons, and other contraband is all too common an occurrence.”

Id. at 559.

In rejecting the Fourth Amendment challenge to the visual body-cavity searches

and in rejecting several other claims related to different aspects of the detainees’

conditions of confinement, the Court in Bell adopted a general tone of deference to

detention-center officials. See id. at 562 (“The wide range of ‘judgment calls’ that

meet constitutional and statutory requirements are confided to officials outside of the

Judicial Branch of Government.”). Subsequent cases involving pretrial detainees also

employ this same tone and reasoning. See, e.g., Block v. Rutherford, 468 U.S. 576,

588–91 (1984) (noting the limited scope of review under Bell in considering pretrial

detainees’ claims and stating that the determination of a protocol for room searches

was “a matter lodged in the sound discretion of the institutional officials”). In Block,

the Supreme Court emphasized the need for deference to institutional officials in

“difficult and sensitive matters of institutional administration and security,” and

highlighted the “limited scope of the judicial inquiry under [Bell].” Block, 468 U.S.

at 588, 589. 
-9-

Although Bell clearly articulated a broad balancing test for assessing the

reasonableness of a visual body-cavity inspection, Serna and the present defendants

phrase their arguments regarding the reasonableness inquiry in terms of the

individualized suspicion or degree of suspicion necessary to justify a search. The

defendants state probable cause is not required (which Serna does not contest) and

appear to argue that no level of individualized suspicion is required. Serna argues that

something akin to individualized reasonable suspicion must exist to justify visual

body-cavity searches. We believe that the Court in Bell made a clear choice to

employ the balancing test rather than build its analysis on a degree-of-suspicion

framework. Accordingly, the parties’ focus is misplaced, and, for the reasons set forth

below, we reject the parties’ invitation to champion this one aspect of the inquiry over

the other factors present in the balancing test.

We note that the parties’ suspicion-based approach is not surprising given the

usual standards and analyses applicable in the context of Fourth Amendment claims

outside the context of criminal or civil detention. The Court in Bell addressed the

issue of individualized suspicion only in passing, however, and did not clearly

articulate what level of individualized suspicion it found to exist based on the facts of

the case. The Court stated, “[W]e deal here with the question whether visual bodycavity inspections . . . can ever be conducted on less than probable cause.” Id. at 560.

Clearly, then, the Court viewed the officials in Bell as lacking probable cause to

justify their searches. A dissenting Justice in Bell went so far as to characterize the

majority as not requiring reasonable suspicion; although, the majority did not

characterize its own holding as such. See id. at 563 (Powell, J., dissenting in part) (“In

view of the serious intrusion on one’s privacy occasioned by such a search, I think at

least some level of cause, such as reasonable suspicion, should be required to justify

the anal and genital searches described in this case.”). The Eleventh Circuit

subsequently stated that because the majority elected not to amend its opinion to

address Justice Powell’s concern, the majority likely did not demand even reasonable

suspicion. See Powell v. Barrett, 541 F.3d 1298, 1307–08 (11th Cir. 2008) (en banc).
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Whether this is true, the Eleventh Circuit’s commentary, at a minimum, highlights the

fact that the Court in Bell did not clearly articulate a particular level of individualized

suspicion required to justify visual body-cavity searches. 

Regardless of what level of individualized suspicion existed in Bell—something

less than probable cause, reasonable suspicion, or something less than reasonable

suspicion—the facts and holding of Bell illustrate that some unarticulated level of

individualized suspicion was present and that the Court necessarily considered this

fact in its application of the balancing test. The detainees in Bell were subjected to

invasive visual body-cavity searches upon re-entry after contact visits with outsiders.

Accordingly, those detainees subject to search were persons who had heightened

access to contraband materials. The facts of Bell, then, preclude us from adopting the

defendants’ argument that Bell involved a blanket policy applied without attempts to

distinguish between different members of a detainee population. Given the facts of

Bell, and the Court’s articulation of the balancing-test factors, suspicion is relevant to

the analysis, and we should treat it as part of the “scope,” “manner,” or “justification”

factors of the balancing test. See Bell, 441 U.S. at 559.

We reach this conclusion because certain justifications for searches and certain

circumstances in which searches are conducted demand less individualized suspicion

than others. For example, had the triggering evidence in this case suggested the

presence of a more acute danger such as lethal drugs or a weapon (rather than a cell

phone, which as discussed below, presents an indirect form of danger within a facility

housing sexually dangerous persons), the administrators’ apparent rush to conduct

highly invasive searches of the entire population, on balance, more clearly would have

been reasonable. If the triggering evidence had been a prohibited but relatively benign

object, however, it would have seemed, on balance, less reasonable to move quickly

towards a method of searching that is so highly and personally invasive. Similarly,

if the common area had been common only to a small subset of the detainees at Moose

Lake, it would have been much less reasonable to conduct facility-wide, visual body-
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cavity searches. As these hypotheticals indicate, we view the question of

individualized suspicion as an inherent component of the Court’s balancing test, and

we decline the parties’ invitation to rest our analysis too heavily on this factor.

C. Application of the Test to Determine whether there was a Violation of

a Clearly Established Constitutional Right.

The defendants assert qualified immunity as a defense to suit based on Serna’s

claims against them in their individual capacities. Qualified immunity generally

shields “[g]overnment officials performing discretionary functions . . . from liability

for civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). We employ a two-part inquiry to determine

whether a lawsuit against a public official alleging a constitutional violation can

proceed in the face of an assertion of qualified immunity. See Saucier v. Katz, 533

U.S. 194, 200–01 (2001). 

In Saucier, the Court set forth the two-part test with a mandatory sequence for

analysis. First, courts were to consider whether, “[t]aken in the light most favorable

to the party asserting the injury, . . . the facts alleged show the officer’s conduct

violated a constitutional right[.]” Id. at 201. The “existence or nonexistence of a

constitutional right” was, therefore, a threshold question. Id. Second, courts were “to

ask whether the right was clearly established.” Id. This second question is a factintensive inquiry that “must be undertaken in light of the specific context of the case,

not as a broad general proposition.” Id. “For a right to be deemed clearly established,

the ‘contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’” Buckley v. Rogerson, 133 F.3d

1125, 1128 (8th Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). In other words, “[o]fficials are not liable for bad guesses in gray areas; they
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are liable for transgressing bright lines.” Davis v. Hall, 375 F.3d 703, 712 (8th Cir.

2004) (quotation omitted).

The Court’s primary rationale in Saucier for making the sequential analysis

mandatory was to ensure the development of clear standards as to the underlying

questions of constitutional law. Saucier, 533 U.S. at 201. After Saucier, several

Justices criticized, or at least expressed doubt as to the wisdom of, the mandatory,

sequential nature of the two-part test. See, e.g., Morse v. Frederick, 127 S. Ct. 2618,

2641–42 (2007) (Breyer, J., concurring in the judgment and dissenting in part) (noting

the tension between the rule of Saucier and the general principal that courts should

avoid constitutional issues when possible, and also noting difficulties associated with

forcing courts to address constitutional claims even when those claims may not be

well presented). Recently, the Court embraced these concerns, reversed itself, and

eliminated the mandatory aspect of Saucier’s sequential analysis. See Pearson v.

Callahan, 129 S. Ct. 808, 818 (2009). According to Pearson, although it is “often

appropriate” to address the substantive claims in qualified-immunity cases, lower

courts are now “permitted to exercise their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Id. 

 Qualified immunity only applies to claims against public officials in their

individual capacities. See Kentucky v. Graham, 473 U.S. 159, 166–67 (1985) (noting

that personal-immunity defenses are unavailable in official-capacity actions). Also,

in accordance with Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment

bars damages claims against the states, but generally does not bar claims for

prospective injunctive relief against public officials in their official capacities.

Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007); see Nix v. Norman,

879 F.2d 429, 432 (8th Cir. 1989) (“[T]he Eleventh Amendment bars suits by private

parties ‘seeking to impose a liability which must be paid from public funds in the state

treasury . . . .” (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974))). Because
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neither form of immunity applies to official-capacity claims for injunctive relief, the

discretion that the Supreme Court returned to lower courts through Pearson will not,

as a practical matter, be available in every case. Rather, where an action includes

individual and official-capacity claims, and where a demand for injunctive relief

against state officials is outstanding, as in the present case, it will remain necessary

to address the underlying constitutional issues or decide the case on other grounds

entirely.

Turning to the application of the Bell test to the facts of Serna’s case, we

consider the justification for the search, as compared to the scope, manner, and

location of the intrusion. Bell, 441 U.S. at 559. This amounts to a balancing of the

need for the visual body-cavity search against the intrusion upon Serna’s personal

rights. See Goff v. Nix, 803 F.2d 358, 364–66 (8th Cir. 1986) (applying Bell in the

context of a prison).

Regarding the defendants’ general justification for the search, security at

detention facilities, prisons, and mental institutions alike, is undoubtedly important.

See Block, 468 U.S. at 586 (“[T]here is no dispute that internal security of detention

facilities is a legitimate government interest . . . .”). Specifically, security at

institutions dedicated to the containment and treatment of mental patients is crucial

to safety as well as treatment:

The governmental interests in running a state mental hospital are similar

in material aspects to that of running a prison. Administrators have a

vital interest in ensuring the safety of their staff, other patients, and of

course in ensuring the patients’ own safety.

Morgan v. Rabun, 128 F.3d 694, 697 (8th Cir. 1997). Thus, “the government may

take steps to maintain security at its institutions” where sexually violent persons are

confined. Seibert v. Alt, 31 F. App’x 309, 312 (7th Cir. 2002) (unpublished). 
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In the instant case, the defendants rightly proffer institutional security as a

justification for the visual body-cavity search of Serna. While illegal drugs or

weapons are the contraband typically sought during personally invasive searches

within detention facilities, the administrators at Moose Lake explained that cell

phones present a “grave security threat” in the context of sexually violent persons.

The threat includes the potential to conduct criminal activity, including contacting past

victims, grooming future victims, or securing child pornography. See, e.g., United

States v. Mentzos, 462 F.3d 830, 836–37 (8th Cir. 2006) (describing a patient who

used a phone to secure child pornography while confined in Moose Lake). Many cell

phones also have photographic capabilities, which could be used to undermine

institutional security by transmitting images of personnel or buildings to persons

outside the facility. These context-specific concerns demonstrate that possession of

a cell phone may “significantly increase the possibility that there will be breaches of

security and that the safety of others will be placed in jeopardy.” Block, 468 U.S. at

588. Cell phones and their potential to grant access to past or future victims for illegal

purposes or to procure sexually explicit material also have the potential to negatively

interfere with the Program’s treatment goals. In fact, the reaction of a Moose Lake

detainee who actually had a phone illustrates this point. See e.g., Senty-Haugen, 462

F.3d at 883–84 (noting the violent reaction from a patient at Moose Lake when the

cell phone he surreptitiously had been using was seized). 

Further, the administrators at Moose Lake had specific evidence and heightened

concerns regarding cell phones—the cell-phone case, the surveillance video, and a

specific history regarding contraband phones and patients’ use of phones to commit

crimes. See Mentzos, 462 F.3d at 836–37 (discussing criminal activity conducted via

phone from within Moose Lake by a patient in 2001); see also Franklin v. Lockhart,

883 F.2d 654, 656 (8th Cir. 1989) (considering, in the context of a prison, the “history

of contraband in the building” in finding justification for visual body-cavity searches

sufficient). These facts indicate that the general justification for a search was based

upon concrete information and not merely upon “perceived security concerns.” See
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Goff, 803 F.2d at 363; cf. Jones v. Edwards, 770 F.2d 739, 741 (8th Cir. 1985)

(finding justification for the strip search of a petty misdemeanor arrestee insufficient

where, among other things, officers had no reason to suspect possession of

contraband). Ultimately, “[t]he public’s interest in safe and orderly [institutions] is

significant.” Goff, 803 F.2d at 365. As such, the general security concerns listed by

the facility administrators in this case are “legitimate and weighty.” Id.

The factors to consider in looking at the intrusion Serna suffered include the

manner, location, and scope of the search. Bell, 441 U.S. at 559. A visual bodycavity search unquestionably is “intrusive and unpleasant.” Goff, 803 F.2d at 365;

see also id. at 372–74 (Bright, J., dissenting) (discussing the nature of the intrusion

and its impact upon the persons being searched). The intrusion of such a search is

significant. See Franklin, 883 F.2d at 656. Like the search we upheld in Goff,

however, the search in this case was “not any more intrusive or demeaning than” the

search the Court approved in Bell. Goff, 803 F2d at 365. Staff members conducted

the searches in private bathrooms, not in public or semi-public areas. See id. at 366

(upholding search conducted “in as private a location as security concerns will

allow”). There were no extraneous personnel or patients present; only those involved

in the search could observe Serna’s unclothed body. Cf. Jones, 770 F.2d at 742

(noting that a strip search of an arrestee conducted in the alcove of a hallway was only

fortuitously private in finding search unreasonable). Staff executed the searches in a

professional manner in same-sex teams of two. Goff, 803 F.2d at 366 (considering

the fact that the visual body-cavity search of a prisoner was conducted by an officer

of the same sex in upholding the search as reasonable). Further, the search was

“strictly a visual search.” Id. Staff members did not touch Serna during the search;

rather, they asked him to make available for visual inspection portions of his anatomy

capable of concealing contraband. There is nothing in the record to indicate that the

search was conducted in an abusive manner. See Bell, 441 U.S. at 560 (noting that

a visual body-cavity search on a pretrial detainee may not be conducted in an abusive

fashion).
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The scope of the overall response to the discovery of a cell-phone case, namely,

the apparent rush to conduct facility-wide, visual body-cavity searches suggests a

disproportionate reaction. Without belaboring the point, we note that a body cavity

is not necessarily the first place reasonable persons normally would look for a cell

phone. Serna does not argue, however, that a cell phone cannot be secreted in this

fashion or that cell phones are substantially different than other objects smuggled by

this means. 

Also, the failure to apply any one of several apparent and less invasive search

methods militates against a finding of reasonableness. The justifications the

defendants offer are general in nature, not specific to Serna, and the administrators

possessed information that would have allowed them to partition the population into

groups viewed as more or less likely to be in possession of the cell phone (e.g.,

persons on the surveillance tapes or persons with a history of possessing contraband).

In other words, although administrators had information in their possession that

clearly directed individualized suspicion at certain patients rather than others, the

administrators chose not to rely upon this information. 

Further, there is no suggestion that staff conducted pat-down searches of any

inmates prior to subjecting all inmates to visual body-cavity searches. Similarly, there

is no suggestion that staff conducted room searches prior to conducting the visual

body-cavity searches. By all accounts, it appears that they jumped straight to facilitywide, visual body-cavity searches after a review of the surveillance video failed to

show which patient had dropped the cell-phone case. 

That is not to say that officials are required in all cases to apply the leastintrusive methods or proceed through a series of progressively more invasive

techniques en route to conducting highly invasive searches. The Court in Bell refused

to adopt a less-invasive-means test. See id. at 559 n.40 (“[T]he logic of such elaborate
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less-restrictive-alternative arguments could raise insuperable barriers to the exercise

of virtually all search-and-seizure powers.” (quotation omitted)). And strict

application of such a methodology would effectively deprive institutional

administrators of the deference noted in Bell. 

Nevertheless, the Court in Bell proceeded to “assum[e] that the existence of less

intrusive alternatives is relevant to the determination of the reasonableness of the

particular search method at issue,” and addressed several less restrictive alternatives.

Id. Further, our court, post-Bell, has identified the availability of less invasive search

techniques as being material to the reasonableness of particular strip searches or bodycavity searches. See, e.g., Jones, 770 F.2d at 742 (holding the strip search of a leashlaw violator was unreasonable and noting “that neither the officers nor the jailers

attempted a less intrusive pat-down search, which would have detected the proscribed

items they sought without infringing [the arrestee’s] constitutional protections”);

Franklin, 883 F.2d at 656–57 (holding that semi-public, visual body-cavity searches

of segregated prisoners upon movement between housing units or following contact

with outsiders were not unreasonable, and stating that “the record does not support a

finding that a less public means of searching exists that would not compromise those

security concerns”). Thus, our cases dictate that, while it is not necessary for officials

to employ the least-invasive search techniques available, it is proper for courts to

consider the availability of simple, safe, and less invasive techniques that officers

elected not to pursue when assessing the reasonableness of performing body cavity

searches en mass on a treatment center population.

In balancing these factors, we expressly reject the defendants’ attempt to

establish a wide-reaching rule that any suspicion of contraband is sufficient to justify

facility-wide, visual body-cavity searches. The defendants’ argument would

champion the broad words and the deferential spirit of Bell over its facts and relatively

narrow holding—the approval of invasive searches of a limited category of persons
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based on something less than probable cause. We previously have recognized the

limitations of Bell, and we have held that not all search techniques may be swept

under the rug of deference to detention-center decisionmakers:

Although we recognize that the security of detention facilities is an

important concern of correction officials who are, in part, responsible for

the safety of their charges, we also recognize that security cannot justify

the blanket deprivation of rights of the kind incurred here.

Jones, 770 F.2d at 742. 

Ultimately, however, while we hold that the specific facts of Serna’s case

present a close question of constitutional law, the searches were not unreasonable.

The defendants’ security and treatment concerns are genuine and serious; the searches,

while invasive, were conducted privately, safely, and professionally; and the facility

was reacting to a recurring problem. We view Serna’s case as an outer limit under the

Bell test and, as such, caution facility administrators to recognize that courts’

deference under Bell is not without limits.

We affirm the judgment of the district court.

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